Bidna

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The trajectory of the case law now governing malicious prosecution claims arising out of family law proceedings arcs toward one destination: a bright line barring any such claims, no matter how egregious the defendant’s conduct in the family law action. The present case (at least as pled) is egregious indeed, and forces us to ponder whether the arc should be completed.

After the trial court awarded primary physical custody of a couple’s daughter to the husband, the wife’s mother told him that she would use her superior financial resources to keep reopening custody issues until the husband finally “gave up” custody of the child. Over a period of less than a *30 year the wife (allegedly funded by her mother) brought a series of six totally meritless ex parte applications and OSC’s (orders to show cause) to change custody. 1 The husband alleges these proceedings ended up costing him in excess of $200,000

The issue before us is not an easy one. If we affirm the judgment, we consign the husband to various family law remedies, which conspicuously do not include punitive damages and damages for emotional distress. Moreover, the Napoleon behind the scheme to wear the husband…

As pleaded, this is an egregious case; my colleagues recognize that. But with today’s companion decision affirming the domestic relations court (with which I am compelled to agree), the curious result is that there is no remedy in either that court or the civil law court against the person bankrolling the frivolous custody litigation, Blossom Rosen. This is contrary to the maxim that there is a remedy for every wrong (Civ. Code, § 3523) and, I think, simply incorrect. The civil action lies.

Taking the complaint as a whole, plaintiff has stated a cause of action for common barratry. It is of no moment that no present cause of action is so *41 yclept; a demurrer looks to the ultimate facts alleged without concern for labels. Civil pleading is not a torts examination, and the majority should not flunk plaintiff merely because his attorneys did not correctly title the wrong they pleaded (“A rose by any other name . . -”).

Also, the rule is that plaintiff’s factual allegations must be presumed true and liberally construed upon review of a demurrer sustained without leave to amend. My colleagues do the opposite in considering the case against Blossom Rosen when, at a minimum, we…

The trajectory of the case law now governing malicious prosecution claims arising out of family law proceedings arcs toward one destination: a bright line barring any such claims, no matter how egregious the defendant's conduct in the family law action. The present case (at least as pled) is egregious indeed, and forces us to ponder whether the arc should be completed.

After the trial court awarded primary physical custody of a couple's daughter to the husband, the wife's mother told him that she would use her superior financial resources to keep reopening custody issues until the husband finally "gave up" custody of the child. Over a period of less than a year the wife (allegedly funded by her mother) brought a series of six totally meritless ex parte applications and OSC's (orders to show cause) to change custody. [1] The husband alleges these proceedings ended up costing him in excess of $200,000

The issue before us is not an easy one. If we affirm the judgment, we consign the husband to various family law remedies, which conspicuously do not include punitive damages and damages for emotional distress. Moreover, the Napoleon behind the scheme to wear…